There’s something that is missing from the debates back and forth about whether Brett Kavanaugh lied during any or all of the three Senate confirmation processes he has undergone. I’m of the opinion Kavanaugh lied skillfully, but because he’s a lawyer he managed to do so without committing perjury.

But on one issue — Kavanaugh’s use of emails stolen from Democrats — we don’t need to determine whether he lied or not, because he irrefutably did something that should make him unacceptable to be confirmed.

Even those that argue Kavanaugh didn’t lie and those that argue that, because Manny Miranda wasn’t prosecuted (during a GOP Administration and benefitting from speech and debate protection) or because it wasn’t a technical hack but rather a permissions violation, these emails weren’t “stolen,” do agree that using them was wrong. Here’s David Lat, for example, who wrote most of a book’s worth of Twitter threads defending Kavanaugh this week, admitting that using the emails was “unethical and wrong.”

And whatever you believe about whether Kavanaugh lied in any of these confirmation processes, what is irrefutable is that last week he was told, from the people involved, that he had, in fact, received and used stolen emails. For example, Patrick Leahy told him, repeatedly, that a document of his that got forwarded in draft form, that the document was not public at the time Kavanaugh received it.

Given such a circumstance, there is one natural, decent response. You apologize. Upon learning, allegedly for the first time, that you had indeed used stolen emails, you apologize to the people they were stolen from. “Gosh, I’m sorry. I had no idea. I’m sorry.” That’s what you say when you discover you used emails stolen from someone.

Brett Kavanaugh didn’t do that. He sat in front of his entire Catholic school girl’s basketball team, and instead of apologizing, he defended himself.

So no matter whether he was lying, one thing is crystal clear: he doesn’t think it was wrong to use stolen emails. He had no moral or ethical regret upon learning, definitively, that he had used stolen emails.

There may be several reasons that explain his lack of remorse for using stolen emails.

Obviously, he’s trying very hard not to offend the guy who appointed him before he’s confirmed, and pointing out that it is unethical to use stolen emails might be a sore subject for Donald Trump, who got elected by exploiting stolen emails.

Perhaps, too, he’s just an unethical person, the kind of guy whose Catholicism serves as a sanctimonious self-justification to engage in really unholy behavior.

But the biggest reason why Brett Kavanaugh might be reluctant to apologize for a clear ethical injury, even if he claims it was unwitting, is that it would taint his actions confirming judges. That is, it would make it clear he cheated — even if unwittingly — to push lifetime appointments through Congress. Those judges were confirmed illegitimately. And Kavanaugh, bidding for the third of three lifetime appointments, doesn’t want to do anything to highlight that illegitimately confirmed judges are, themselves, tainted.

Yer giving a lot of Lat-itude. I understand his arguments, but they are awfully strident and willing to be based on “well, shit, Kavanaugh probably couldn’t be prosecuted for X conduct”. And he is not wrong that Kavanaugh either couldn’t be prosecuted under DOJ guidelines, or, at the least, never would be. But, still, there is some chutzpah in those “defenses”.

i have no problem with candidate kavanaugh making his calculation and decision so long as a dem house follows up with a thorough impeachment investigation.

there has to be a penalty for lying to the nation and it’s elected officials, whether it is what i term lawyerly lying (lying thru the ambiguity of words or tense (temporal ambiguity) or regular lying justcas there must be a penalty for manafort and his washington breathern lying about, i. e., hiding, his connections with foreigners trying to influence anerican citizens’ opinions.

Lat is intentionally misleading – Miranda looked over the shoulder of an admin to get the password. That is not a “glitch.” Only some files on the server were meant to be shared, not those. Also, we can assert many things as true in life without resorting to a full criminal trial or scare quotes.

“… we can assert many things as true in life without resorting to a full criminal trial or scare quotes…”

an important life lesson in this society.

i take that to be true and live by it.

would that our most reliable news media undestood and internalized this – it is NOT necessary to obtain the opinion and a quote of some harvard lawyer in order to render a fair judgment on the behavior of one of our public officials, even a very powerful one. the law is not the only, or even the most sensitive and reliable, engine for deciphering the morality, appropriateness, or fairness of the behavior of a public official.

What could possibly possess a good lawyer to double down on prior lies (if lies they were) and reiterate them now, when the entire world is watching on national television? Do you really think he would do that?

southpaw‏ @nycsouthpaw

How about the will to sit on the Supreme Court with four other conservative justices and deliver the reorientation of American jurisprudence he’s been working toward for decades?

Then southpaw breaks out receipts and Ben Wittes was involved:
southpaw‏ @nycsouthpaw

I’m sorry SteveB, I’m not seeing hostility to Pryor in that thread, what did I miss? I also revisited Wittes thread where he calls Kavanaugh a decent person, and doubles down on his opinion that Kavanaugh didn’t lie. He’s playing the ol’ “liberals just don’t like him only because he’s conservative”.

UNFIT TO JUDGE
PRESIDENT BUSH must have worked hard to dream up an escalation of the judicial nomination wars as dramatic as his decision this week to nominate Alabama Attorney General Bill Pryor to the U.S. Court of Appeals for the 11th Circuit. A protege of Alabama Republican Sen. Jeff Sessions, Mr. Pryor is a parody of what Democrats imagine Mr. Bush to be plotting for the federal courts. We have argued strongly in favor of several of Mr. Bush’s nominees — and urged fair and swift consideration of all. And we have criticized Democratic attacks on nominees of substance and quality. But we have also urged Mr. Bush to look for common ground on judicial nominations, to address legitimate Democratic grievances and to seek nominees of such stature as defies political objection. …

I tried to find it in WaPo archives and could not. That excerpt doesn’t attribute the writing to anyone. I don’t wish to subscribe to the paywall. Would you please link the specific comment where this was linked and attached to Wittes? Thanks.

Also, this still doesn’t dispute the core argument that Kavanaugh was involved and subsequently lied about it (as you mentioned and Wittes denies).

I disagree, respectfully. Under any ordinary construction of the phrase “involved in handling,” the fact he was your point of contact about it as part of his duties, rather than e.g. referring you to Ben Powell, is relevant evidence and likely sufficient to show he was involved.

It also goes to show that the Pryor nomination is “one that [Kavauagh] worked on personally,” which he also denied in testimony. And the specific back and forth Kavanaugh had with you on speeches makes this whole colloquy with Kennedy look like far less than the whole truth.

Pryor was so incandescently bad that even Republicans couldn’t defend him. For example, on an organization Pryor created soliciting money :

Republican Betty Montgomery, Attorney General of Ohio, initially joined RAGA but withdrew, saying that “I raised some questions about who we were raising money from. It wasn’t worth trying to sort out what the ethical land mines are.”97 Republican Carla Stovall, Attorney General of Kansas, also refused to join RAGA, stating “‘It’s really not for any group of Republican attorneys general or Democratic attorneys general to dictate what Kansas or Colorado or anyplace else ought to have in play.’”95

Steve, this is not a complicated matter. Our judiciary system is the most fragile branch of government. It relies on the respect of the public to accomplish its task. So when people at the very top lie as repeatedly and unrepentantly as Kavanaugh did, it weakens the whole system.

Many of us are increasingly disturbed by the functioning of the judiciary system. For example, Michelle Alexander documents in her book The New Jim Crow that in California, every African American found with crack cocaine was tried under the harsh federal penalties. Every white was diverted to the state system where they received lighter penalties. And this was true even though many whites use crack. The attorneys of a black defendant asked for the right of discovery to inquire into the apparent racial bias in the diversion system. The Supreme Court denied this, demanding that the defense obtain the information they wanted to get through discovery before granting discovery!

Or, to take another example, who can defend Ken Starr’s investigation of Bill Clinton? Especially in light of the way that Republicans are sabotaging the investigation of Donald Trump? It all just seems like a political use of the juduciary.

Telling ourselves that people like Ken Starr were just bad apples, we have put up with a judiciary that increasingly seems political, partisan, and deaf to basic issues of racial discrimination, disparate treatment of rich and poor, and so on. But at some point, ordinary people are going to decide that they will not go along with the judiciary.

At that point, you have chaos. We need a judiciary to prosecute criminals and decide civil cases. If the judiciary loses the respect of the public, we are f$%#ed as a nation.

There is no way that liars should be allowed on any court. But on the Supreme Court? Even a hint of bad behavior is enough to pass by a candidate. There are plenty of other people eager for the job.

i have come to respect and appreciate your opinions and particularly enoy, yes enjoy, the precision of your speech.

having followed for years the tragedy that enveloped former alabama gov don siegelman, my strong personal belief is that alabama AG bill pryor, u. s. midstate attny leura cannary and her pol advisor (to siegelman opponent) hubby, rasputin karl christian rove, plus other local sleezeballs’ conducted a political war using the u. s. justice department against the popular alabama democrat. if one (appointee) does not know or remember that judge william pryor was when he was nominated, was when he was approved, and is today morally and legally totally unfit for office. hope this helps :)

@Charles and @orionATL.
SteveB understood how bad Kavanaugh is/was. The topic was whether Wittes was a witness to Kavanaugh being involved earlier in attempting to get Pryor appointed, and also whether Wittes was a proponent of Pryor (not Kavanaugh) in this thread.

Wittes was interacting with Kavanaugh back then, but not advocating for Pryor, was SteveB’s point. He had already conceded that Kavanaugh was involved (by virtue of the emails), whether it was a good, bad, or indifferent reaction by Wittes.

His confirmation will be the equivalent of handing the court over to the Heritage Foundation and the legal staff of Koch Industries…The talk of civility is laughable in light of the Republicans’ refusal to give Garland — a judge whose quality Kavanaugh himself extolled — either a hearing or a vote. That was not just incivility, it was an abuse of power reflecting the political right’s determination to seize control of the court by any means necessary.
This is a fight about democracy itself. Right now, democracy is in danger of losing.

Indeed it was a narrow point that I was making – the debate re Wittes role seemed to have got side tracked a little re Wittes support for Kavanaugh, and came to include an assumption/suggestion/ misapprehension that Wittes assisted Kavanaaugh to promote Pryor; the history seemed to have been a bit more nuanced than that. Thank you for articulating that on my behalf. Of course, the larger point was that Kavanaugh was involved in promoting Pryor, and Wittes was reluctant to acknowledge that or anything else to the detriment of Kavanaugh.
For others who replied to me on this sub thread, I hope you do not think me rude for not responding earlier; I appreciate the positive tone of the observations made so far as they refer to me, I think that some of the criticism of the point I was making came from a slight misunderstanding, and given that the matter was off track from the major issue I thought I’d wait a bit to clarify in due course if necessary.

I understand that, Trip, even though Steve’s comment was unclear about whether he approved or disapproved of Pryor. My point was that Pryor was so incandescently bad that Kavanaugh’s involvement in trying to get him appointed was disqualifying to Kavanaugh. Wittes’ later defense of Kavanaugh is therefore indefensible.It makes him complicit in the Pryor nomination. And this is doubly so because he didn’t protest the nomination, and triply so because Wittes wrote (among other ridiculous things):

He will be confirmed not because he is a principled and talented jurist, though he is a principled and talented jurist.

Glad to hear that, bmaz. For over a decade, I’ve been following LS after reading his Don Siegelman articles. He and his wife have been the unfortunate victims of a horribly corrupt Alabama, and now Missouri, judicial system, and punished for speaking the truth about the corruption.

Completely agree. I too remember the Siegelman stuff, and a couple of other things from down there that Roger was very good on. I seriously hated seeing what happened to him, even if he very much did not help himself at a few points. Sad story.

I don’t know all of his background other than it sounds like the gov’t abused the criminal justice system because they didn’t like what he wrote. I was referring to the old naked gourd photo and the rumors that swirled around Sessions and Pryor that he wrote about. If true, that would make Sessions an enormous hypocrite since he’s on the hard right and not a fan of gay rights.

Yup. Willy coconuts. And Sessions went all in on him when he was nominated to US Court of Appeals in Alabama. He was so polarizing, Bush had to make it a recess appointment. What is it about the Republican party attracting all these closeted sex fanatics/offenders?

william prior is a republican political scoundrel and former AG of alabama who conspired with bush domestic affairs advisor karl rove to bring federal charges against gov don siegeulman and take this popular democrat out of alabama politics. a missing scoundrel in this saga of alabama political corruption is former ala u. s. attorney leura canary + her husband bill. alabama politics is the most brutally, violently corrupt in the nation; it has been for decades.

prior has no business being a federal judge in any capacity and merits an impeachment trial for his role in planning with bush’s domestic advisor karl rove the legal/political hit on gov don siegelman to take him out of ala politics. .

Agree with you on Pryor et. al. If you hadn’t heard, the Canary’s have fallen out of favor recently. Billy Canary “retired” (was booted) from the Alabama Business Council earlier this summer. Former Alabama House Speaker Mike Hubbard lost his appeal. Politics (including SCOTUS appointments, which have nothing to do with justice and everything to do with politics) is a very dirty business. Why anyone would want to be involved is beyond me. Oh, and Siegelman’s son, Joseph, is running for AG of AL this November.

Exploiting a glitch: enough to put weev(who is an odious and reprehensible character irrespective of his CFAA issues) in prison, but perhaps not enough to keep Kavanaugh from a lifetime appointment to the highest court in the land?

Just because there was no hack, that does not mean it wasn’t stolen. If I leave my computer unlocked at work, someone forwards a private email to themselves, or copies it to thumb drive, and erases that fact, it is still stolen

He demonstrated that at law school, not with having an consensus-obviousness meter named after him, but by teaming up with the Yale Law School’s FedSoc sponsor on the basketball court. He followed that with four clerkships. One is common, two unusual, except for those destined to be Supreme Court clerks.

He clerked for a judge on the Third Circuit, then with the controversial Alex Kozinski on the Ninth. Given Brett’s ambition and unctuousness, and the reason the clerkship became available, it seems unlikely that Kavanaugh had no knowledge of Kozinski’s alleged sexually predatory behavior. The best courtiers have a feral sense of what their patrons are most interested in.

Kavanaugh would have sought out Kozinski because his part-time job was to screen clerks for conservative members of the Supreme Court. That put him within reach of the brass ring, but William Rehnquist turned him down. So Brett took a third clerkship with the power lawyer he has spent the most time with, Ken Starr, who was then Solicitor General.

The SG routinely argues before the Supreme Court, which provided the networking Kavanaugh needed finally to land a clerkship – his fourth – with Anthony Kennedy. Brett was building his network and his list of patrons, not just a resume.

After finishing his year with Kennedy, Brett joined Ken Starr again, this time at his DC white shoe firm Kirkland & Ellis. He quickly followed Starr again, becoming a key aide in his investigation of Bill Clinton, a post he held, with minor interruptions, for several years.

That gave him hard right street cred, which Kavanaugh used to join the Bush campaign and, then, the BushCheney White House, first as a White House lawyer and then as Staff Sec’y. In that job, he read what crossed the president’s desk and prioritized it for his reading. Given that Shrub was a non-reader, that was a key post, which would have put him in daily contact with Bush whisperer and shadow president, Dick Cheney.

With that thin, overtly political resume, Bush controversially nominated him to the second highest federal appeals court, the DC Circuit. Given his lack of qualifications and his intensely partisan background, it took BushCheney three years to obtain Senate confirmation.

Kavanaugh is supremely arrogant and ambitious. Like Cheney, he actualizes his ambition by working through other, more powerful men. He will continue to do their bidding whether on the Supreme Court or the DC Circuit. If, mirabile dictu, Kavanaugh is not confirmed, Trump’s replacement nominee will be even more of a neoliberal Malleus Maleficarum than Kavanaugh.

Apologies, Marcy, for so bumptiously posting on this thread. It continues to bother me that Clarence Thomas was installed on the SCOTUS and sits there to this day despite the fact that he’s a perjurer and a sex offender. (IMHO: Joe Biden needs to shut his piehole about running for the Presidency after what he did to Anita Hill.) More importantly, bless you and thank you for your twitter-jousts with, and ultimate take-downs of, all these Kavanaugh apologists.

“Judge Kavanaugh, how would you handle a plaintiff who justified using stolen documents because, er, you did as well?” Interesting precedent for the top court of the land. Please note the lack of remorse – there never is.
“Judge, how would this case affect your view of contrition in sentencing and harsh judgments, seeing as you showed none even when presented with hard evidence you *had* used stolen docs you should have known were stolen?”

Ds must demand all emails to or from #Kavanaugh that were kept on Smartech’s server! When Congress investigated the Bush WH’s firing of 8 US attorneys, it learned the Bush admin. had used Smartech for its emails & deleted 22 MILLION of them. They were retrieved in 09. 1/

George W. Bush White House ‘Lost’ 22 Million E-mails?

Some 22 million official White House e-mails, the majority of which were sent and received via private, non-government servers, were reported as lost or missing during the George W. Bush administration.
WHAT’S TRUE
Roughly 22 million White House e-mails exchanged via private servers during the G.W. Bush administration were deleted instead of being archived in accordance with the Presidential Records Act.
WHAT’S FALSE
As opposed to being permanently “lost,” an undetermined number of the e-mails were subsequently recovered (though they have not yet been released to the public).https://www.snopes.com/fact-check/g-w-bush-lost-22-million-e-mails/

“Some 22 million official White House e-mails, the majority of which were sent and received via private, non-government servers, were reported as lost or missing during the George W. Bush administration.”

But most recovered.

So either Smartech had solid backup/recovery procedures in place and they cooperated, *OR* the emails were recovered via other means like 702.

I’m all for impeaching Kavanaugh, and Thomas, and Gorsuch. Fuck it. If we’re not going to use our numbers to intimidate these rich assholes, what’s the point of having the numbers? This isn’t a democracy.

At best, Kavanaugh complicit with regard to domestic spying. At best. That is being generous. Suspect he was always in the loop and knew ahead of 9-11 that it would happen, setting up the excuses for the domestic spying.

2/ => There is enough evidence of Kavanaugh involvement in #WarrantlessWiretapping and
#PatriotAct that @senjudiciary vote should be suspended, pending release of related emails from
@WhiteHouse years. The secrecy is unprecedented. The evidence is substantial.

At the risk of being annoyingly reductive, does the diminishing cost of this sort of behavior trickle down? “This behavior” being lying under oath or misleading or omitting significantly, in the context of a confirmation setting, U.S.C. § 1001, the clearance stuff, etc. Sometimes I hear people taking the foreign service exam or even the bar or law school character and fitness with the very specific dread that a minor DUI, text message to a drug dealer, buying weed off a kid on a skateboard, whatever, going a bit hyperbolic here but you get the idea — will be an insurmountable barrier. Regardless of whether or not its ridiculous to dock for those things in the first place, does the collective chipping away at “moral character” reframe the magnitude of significance of that strain of assessments? Setting aside whether beholder thinks it would be an upshot, or an institutionalization of an ethical race to the bottom, or both.

The sad thing is that for every Marcy Wheeler – who ethically goes to the FBI – we have scores (maybe hundreds) of greedy, power-hungry, perjuring toadies who end up in cushy GOP-feathered nests – preying upon the rest of us.